Tulk v Moxhay [1848] is the landmark Court of Chancery decision establishing that the burden of a restrictive covenant can run with the land in equity — a vital exception to the strict common-law rule that burdens do not pass to successors in title. It is the foundational authority for the restrictive covenant, an equitable proprietary interest that allows landowners to control the use of land long after they have sold it.

Facts of the Case

The dispute concerned the garden at the centre of London’s Leicester Square. In 1808, the plaintiff, Tulk, sold the garden to a purchaser named Elms, who covenanted (for himself and his heirs) to maintain it in “neat and ornamental order” and, crucially, to keep it “uncovered with any buildings” so it could remain a pleasure ground — preserving the amenity and value of the neighbouring properties Tulk continued to own.

The land passed through several owners until it was bought by the defendant, Moxhay. Although Moxhay purchased with notice of the restriction, his conveyance did not contain it, and he asserted he was not bound by a contract to which he was not a party. He proposed to build on the open space, and Tulk — still owning nearby land — sought an injunction.

Legal Issue

Whether a person could use land in a manner inconsistent with a contract entered into by a previous owner, when they had purchased the land with notice of that contract. At common law (following Austerberry v Oldham), the burden of such a promise would never run with the land.

The Judgment

Lord Cottenham LC granted the injunction, holding that equity would enforce the restriction against a successor who took with notice. His reasoning rested on the conscience of the purchaser and the inequity of the situation:

  • Notice: the key factor was that Moxhay knew of the restriction when he bought the estate, so his conscience was bound by the original promise.
  • Price consideration: the purchase price would have been lower because of the restriction.
  • Unjust enrichment: it would be inequitable for a purchaser to buy at a reduced price because of a covenant and then resell at a higher price by claiming not to be bound by that same liability.

This intervention transformed what was a mere personal contract into a proprietary right capable of binding third parties, providing a solution to the common law’s refusal to allow the burden of a covenant to run with freehold land.

Legal Authority and Significance

Tulk v Moxhay established that the burden of a restrictive covenant can run with the land in equity, offering Industrial-Revolution landowners a way to protect the “amenity and value” of their neighbourhoods from industrial encroachment — effectively an early forerunner to modern planning law. Over time the decision was refined into a strict five-point test for when a burden will run in equity:

  • The covenant must be restrictive (negative) in substance: it must require the owner to “passively not act” rather than spend money. Although the covenant in Tulk was phrased positively (“to maintain”), its substance was negative — to keep the square “uncovered with any buildings”.
  • The covenant must “touch and concern” the land: it must affect the nature, quality, or mode of user of the land rather than being purely personal.
  • There must be land capable of benefiting: the “dominant land” must be identifiable with reasonable certainty at the time of the grant.
  • The burden must be intended to run: under section 79 of the LPA 1925 there is now a statutory presumption of this intention unless the contrary is expressed.
  • Compliance with registration/notice: the burden must be protected by a notice on the charges register (registered land) or a Class D(ii) land charge (unregistered land).

Limitations and Comparison to Austerberry

While initially interpreted broadly, later courts — most notably in Austerberry v Oldham Corporation (1885) and Rhone v Stephens (1994) — strictly limited the doctrine to negative (restrictive) covenants. Successors cannot be compelled in equity to perform positive acts, such as spending money on repairs, because doing so would “flatly contradict” the common-law rule that a person cannot be made liable on a contract unless they were a party to it. The doctrine therefore allows equity to deprive an owner of a right over property (such as the right to build), but it cannot be used to compel an owner to exercise a right or incur a financial burden.

Related Cases

  • Whatman v Gibson (1839) & Mann v Stephens (1846): earlier decisions that served as the foundation for the ruling in Tulk.
  • Haywood v Brunswick Permanent Benefit Building Society (1881): a key refinement establishing that equity will not enforce a covenant requiring the expenditure of money (a positive covenant) against a successor.
  • London and South Western Railway Co v Gomm (1882): confirmed that equity’s intervention under Tulk is limited to negative or restrictive stipulations.
  • Austerberry v Oldham Corporation (1885): clarified that the equitable rule does not extend to positive covenants such as road repairs.
  • Cooke v Chilcott (1876): originally suggested a positive burden might run in equity, but was overruled on this point in Austerberry and Haywood.
  • Morland v Cook (1868): later explained as a case where a deed effectively created a rent-charge rather than a positive covenant running in equity.
  • Holmes v Buckley (1691): an ancient case on a covenant to cleanse a watercourse, whose exact basis under the Tulk doctrine later judges found obscure.
  • London CC v Allen (1914): added that for the burden to run, the original covenantee must have owned land capable of being benefited at the time of the grant.
  • Rhone v Stephens (1994): the House of Lords refused to extend the doctrine to positive covenants, as doing so would “flatly contradict” the common-law rule.
  • Rogers v Hosegood (1900): a restrictive covenant must “touch and concern” the land of the original covenantee to be enforceable against successors.
  • Swift (P. & A.) Investments v Combined English Stores Group plc (1989): provides the modern three-stage test for whether a covenant “touches and concerns” the land.
  • Wrotham Park Estate v Parkside Homes (1974): a key case on remedies, awarding damages in lieu of an injunction to avoid the “unpardonable waste” of demolishing built houses.
  • Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd (2020): a recent Supreme Court decision on discharge or modification of restrictive covenants, emphasising that the court will not reward a “cynical breach”.